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Cooke (a pseudonym) v The Queen

Cooke (a pseudonym) v The Queen

Case [2022] ACTCA 44 30 August 2022

Statutory Construction

Criminal Law

Statutory Interpretation

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Cooke (a pseudonym) v The Queen
Citation:	[2022] ACTCA 44
Hearing Date:	17 May 2022
DecisionDate:	30 August 2022
Before:	Mossop, Loukas-Karlsson and Rangiah JJ
Decision:	See [70]
Catchwords:	CRIMINAL LAW – APPEAL – PRACTICE AND PROCEDURE – appeal against sentence – whether sentencing judge erred by considering strength of prosecution case when determining appropriate discount for plea of guilty – no submission that case was “overwhelmingly strong” – strength of prosecution case only relevant to s 35(4) for guilty plea discount – specific error – appeal allowed – re-sentence
Legislation Cited:	Crimes Act 1900 (ACT) s 61 Crimes (Sentencing) Act 2005 (ACT) ss 33, 35
Cases Cited:	Alan (NT) Alumina v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Barrett v The Queen [2016] ACTCA 38 Coggan v The Queen [2013] ACTCA 49 Cranfield v The Queen [2018] ACTCA 3 House v The King (1936) 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lehn v The Queen [2016] NSWCCA 255; 93 NSWLR 205 Miller v The Queen [2018] ACTCA 21; 273 A Crim R 27 Monfries v The Queen [2014] ACTCA 46; 68 MVR 385 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v BJW [2000] NSWCCA 60; 112 A Crim R 1 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Fitzpatrick (Supreme Court of the Australian Capital Territory, Nield AJ, 25 June 2013) R v KI [2019] ACTSC 292 R v LE [2018] ACTSC 143 R v Sutton [2004] NSWCCA 225; 41 MVR 40 R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 Siganto v The Queen (1998) 194 CLR 656 Taylor v the Queen [2014] ACTCA 9 Thammavongsa v The Queen [2015] NSWCCA 107; 251 A Crim R 342 Williams v The Queen [2018] ACTCA 4; 83 MVR 505 Zdravkovic v The Queen [2016] ACTCA 53 Zhao v The Queen [2018] ACTCA 38
Parties:	Cooke (a pseudonym) ( Appellant) The Queen ( Respondent)
Representation:	Counsel S McLaughlin ( Appellant) K McCann ( Respondent)
Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecution ( Respondent)
File Number:	ACTCA 54 of 2021
Decision under appeal:	Court/Tribunal: Supreme Court of the Australian Capital Territory Before: McWilliam AJ Date of Decision: 24 September 2021 Case Title: R v Cooke (a pseudonym) Citation: [2021] ACTSC 249

MOSSOP J:

I agree with Loukas-Karlsson J.

LOUKAS-KARLSSON J:

Introduction

On 24 September 2021, the appellant was sentenced to 23 months imprisonment with a non-parole period of 18 months (R v Cooke (a pseudonym) [2021] ACTSC 249 (primary judgment)).

The offender was sentenced for a single count of act of indecency with a person under the age of 10 years contrary to s 61(1) of the Crimes Act 1900 (ACT)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cooke (a pseudonym) v The Queen

Details

AGLC: Cooke (a pseudonym) v The Queen [2022] ACTCA 44
Case: [2022] ACTCA 44
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by Mossop, Loukas-Karlsson and Rangiah JJ, heard an appeal by Cooke (a pseudonym) against a sentence imposed by the primary judge. The dispute concerned the appropriate discount for a guilty plea in sentencing for an act of indecency with a person under the age of 10 years. The appellant was sentenced to 23 months imprisonment with a non-parole period of 18 months, with the sentencing judge having applied an approximately 18% discount for the guilty plea.

The central legal issue before the Court of Appeal was whether the sentencing judge erred by considering the strength of the prosecution case when determining the appropriate discount for the appellant's guilty plea. Specifically, the appeal questioned whether the strength of the prosecution case was a permissible consideration for the guilty plea discount, particularly in circumstances where the prosecution did not submit that the case was "overwhelmingly strong" and therefore s 35(4) of the *Crimes (Sentencing) Act 2005* (ACT) did not apply. The appellant also raised grounds concerning the overall excessiveness of the sentence and the adequacy of reasons for the non-parole period.

The Court of Appeal allowed the appeal, finding that the sentencing judge had made a specific error of the kind identified in *House v The King* by taking into account the strength of the prosecution case when determining the discount for the guilty plea. The Court held that while the strength of the prosecution case is relevant under s 35(4) of the *Crimes (Sentencing) Act 2005* (ACT) for an "overwhelmingly strong" case, it is not a permissible consideration for reducing the guilty plea discount in other circumstances. The respondent conceded that if this was found to be an error, the sentencing discretion would need to be exercised afresh.

Consequently, the Court of Appeal allowed the appeal, set aside the sentence imposed by the primary judge, and remitted the matter for re-sentencing. The Court noted that it was strictly unnecessary to consider the other grounds of appeal, although factors relevant to manifest excess were considered in the resentencing exercise.

Orders